Hines v. Pitt County Bd. of Ed.

• Decision Date: 08 September 1980
• Docket Number: No. 80-82-CIV-4.,80-82-CIV-4.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: James Bradley HINES, by his Guardian ad litem, Lorraine Hines, Plaintiff, v. The PITT COUNTY BOARD OF EDUCATION et al., Defendants.

497 F. Supp. 403

James Bradley HINES, by his Guardian ad litem, Lorraine Hines, Plaintiff, v. The PITT COUNTY BOARD OF EDUCATION et al., Defendants.

No. 80-82-CIV-4.

United States District Court, E. D. North Carolina, New Bern Division.

September 8, 1980.

Michael A. Colombo, Greenville, N. C., for plaintiff.

William C. Brewer, Jr., Greenville, N. C., for Pitt County Bd. of Ed.

Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Raleigh, N. C., for N. C. State Bd. of Ed.

MEMORANDUM OF DECISION

BRITT, District Judge.

This action was instituted by James Bradley Hines (hereinafter "Brad") against the Pitt County Board of Education, its members and Superintendent; the Pitt County Commissioners; and, the North Carolina Department of Public Instruction and its Superintendent, alleging that plaintiff has been deprived of an appropriate free public education and seeking monetary damages and injunctive relief. A hearing was held before this Court on 24 June 1980 on the motion for a preliminary injunction, and the motion was denied.

Upon suggestion of the Court, Lorraine Hines, mother of Brad, qualified as guardian ad litem. By stipulation all individual defendants were dismissed, and the North Carolina State Board of Education was substituted as a party defendant in the place of the North Carolina Department of Public Instruction.

Specifically plaintiff seeks:

(1) An order declaring that the Children and Youth Unit of Cherry Hospital (hereinafter "Cherry") in Goldsboro, North Carolina, is not an appropriate educational placement for Brad;

(2) An injunction compelling defendants to provide a free and appropriate education to Brad, preferably at Devereux Foundation in Glen Moore, Pennsylvania;

(3) One hundred thousand dollars in damages; and

(4) Attorneys' fees.

This Court has jurisdiction based on a federal question under 20 U.S.C. § 1401; 29 U.S.C. § 701; and 42 U.S.C. § 1983.

Brad, an adoptive child, was born on 28 September 1969. He displayed emotional problems evidenced by frustration, hostility and difficulty in relating to other children before age five. His history in the public school system of Pitt County has been marked by continual problems. He attempted to run away in kindergarten, refused to complete his work and in other ways presented special problems to the teachers and other school personnel. His difficulties continued in the first grade, and he was placed in a class for the learning disabled where he frequently "tuned people out" and refused to communicate, sitting and staring blankly into space. Although he was promoted to the second grade and remained in the learning disabled class, his problems continued to the extent that, with the agreement of his parents, he was returned to the first grade. School officials held frequent conferences with Brad's parents in an effort to better meet his needs.

Brad seemed to make some progress in his repeat trip to the first grade under Mrs. Barrington. He was again promoted to the second grade where he was placed by the Principal in the class of Mrs. Ross, a teacher of thirty-five years experience who related well to boys. However, Brad's problems multiplied, particularly with regard to his aggressive behavior toward other children. These problems continued into the third grade when, evidently, Brad's tendency to withdraw and refusal to communicate became more pronounced. An Administrative Placement Committee then decided that Brad should be sent to a special school at Ayden for emotionally handicapped children. There he refused to be quiet, prevented other children from playing with toys and showed other aggressive behavior toward his classmates. On one occasion Brad told a Principal, Blaine Moye, that he hated everyone, including himself, and that he wanted to kill himself. He even started beating his head against a concrete wall. In addition, he pushed over desks, tore up papers and ran away from school.

Upon advice of Dr. Earl Trevathan, a pediatric neurologist in Greenville, Brad's parents sent him to the Child Psychiatry Unit at North Carolina Memorial Hospital (hereinafter "NCMH") in Chapel Hill on 25 June 1979 for in-patient evaluation and treatment. He stayed there for more than three months-until 5 October 1979. NCMH determined that Brad was a severely handicapped child, diagnosing him as "schizoid personality" or "isolated personality". Additionally, NCMH could not rule out a diagnosis of "childhood schizophrenia". Testing revealed that Brad has an IQ of 92 and that he functions in the average range of intelligence.

In summarizing Brad's problems and needs Dr. C. Thomas Gualtieri, the Director of the child in-patient unit at NCMH, said: "We were most cognizant of the fact that Brad's gravest problems occurred at school, and that he appeared to be unable to participate in any of the special programs that were available at Greenville. To a very large degree, this was probably because an educational placement that was entirely appropriate to a child of his specific needs was not available in that community. We recommend * * * some residential treatment center."

Following his stay at Chapel Hill, Brad was returned to the class for the emotionally handicapped at the Ayden Elementary School. The school hired an extra teacher's aide solely to help meet Brad's needs, but Brad's behavior was much the same as before he went to Chapel Hill. He was destructive of property and threatened, intimidated and harassed other students. Nevertheless his teacher testified that she felt Brad had the ability to learn if he could overcome his behavioral problems.

Finally Brad was taken out of the school and a "homebound" teacher went to his home two days a week to give him individual instruction. The teacher, Linda Howard, testified that she didn't feel her efforts were successful.

An Administrative Placement Committee of the Pitt County Board of Education recommended that Brad be sent to Cherry. Brad's parents appealed this decision, and a hearing was held on 25 February 1980 before Dr. Betty A. Levey, an impartial hearing officer. Dr. Levey decided that Cherry was not an appropriate placement for Brad. This decision was appealed by the Pitt County Board of Education and was reviewed by Karen Sindelar, State Review Officer, on 9 April 1980. Ms. Sindelar found that Cherry was an appropriate placement for Brad, and this action followed.

The Congress of the United States enacted into law in 1975 the Education For All Handicapped Children Act.¹ This was done "in response to the need for increased funding brought about by the widespread recognition by the Courts and state legislatures of the right of handicapped children to an adequate education." 92 Harv.L.Rev. 1103 (1979).

The Act provides for funds to be distributed to the states electing to participate² under its provisions. In making the election a state has to satisfy the Commissioner of Education that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412.

North Carolina elected to participate in this program. N.C.Gen.Stat. § 115-363 et seq. In so doing, the Legislature said: "The General Assembly finds that all children with special needs are capable of benefitting from appropriate programs of special education and training and that they have the ability to be educated and trained and to learn and develop. Accordingly, the State has a duty to provide them with a free appropriate public education." N.C. Gen.Stat. § 115-364.

The fact that Brad is a child who should benefit is not subject to debate. "The term `children with special needs' includes, without limitation, all children between the ages of five and eighteen who because of permanent or temporary * * * emotional handicaps need special education, are unable to have all of their needs met in a regular class without special education or related services, or are unable to be adequately educated in the public schools. It includes those who are * * * seriously emotionally disturbed * * *." N.C.Gen. Stat. § 115-366. "The term `handicapped children' means * * * seriously emotionally disturbed * * * children." 20 U.S.C. § 1401.

What is meant by "free appropriate education"? It is defined in the federal statute as "special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C)include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." 20 U.S.C. § 1401(18).

"The term `special education' means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child³ including * * instructions in hospitals and institutions." 20 U.S.C. § 1401(16); N.C.Gen.Stat. § 115-365.

The Court in Rowley v. Board of Education, 483 F.Supp. 528, 534 (S.D.N.Y.1980) said:

An "appropriate education" could mean an "adequate" education-that is, an education substantial enough to facilitate a child's progress from one grade to another and to enable him or her to earn a high school diploma. An "appropriate education" could also mean one which enables the handicapped child to achieve his or her full potential. Between those two extremes, however, is a standard which I conclude is more in keeping with the regulations, with the Equal Protection decisions which motivated the passage of the Act, and with common sense. This standard would require that each handicapped child be given an opportunity to achieve his full potential commensurate with the opportunity provided to other children. * * * Since some handicapped children will undoubtedly have the intellectual ability to do better than merely progress from grade to grade, this standard requires something more

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